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Top Estate and Tax Planning Strategies

Top Estate and Tax Planning Strategies

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Taxstrategies Taxstrategies Presentation Transcript

  • Top Tax & Estate Planning Strategies Spring 2009
  • FAMILY TRUSTS Gift assets to a trust for the benefit of family members, and control access to principal, further ensuring sustainability of wealth.
  • Family Trusts Trustee Spouse Distributes Income/ Principal Grand Children parent Trust Grand children
  • Common Trust Distribution Provisions  “Discretionary” Trust  Income [and Principal, if desired] subject to an “ascertainable standard” (for health, support, maintenance and education only)  “Total Return” Trust  A percentage of trust assets annually, paid out of income and capital gains  “Incentive” Trust  Distributions depend on beneficiary achievements  Often “matching” distributions based upon child’ salary or other meritorious achievements  “Dynasty” Trust  A trust can be structured to “skip” generations and avoid estate inclusion in the next generation  Child’s control over principal must be limited
  • GRANTOR RETAINED ANNUITY TRUST Transfer future appreciation on assets over a short term of years, without losing access to the current value of the underlying asset transferred, and without paying gift tax.
  • Grantor Retained Annuity Trust Transfer Appreciation. Retain Principal. Reduce Gift & Estate Tax. Appreciated Property Senior Family Trust Member Annuity For Term of Years Remainder Advantages: Interest 1. Transaction is ignored for income tax purposes 2. Any appreciation in excess of IRS interest rate is Junior effectively transferred without gift tax Family Member 3. Taxable gift is limited to the present value of the remainder – annuity can be set high enough to “zero-out” the taxable gift and get back principal entirely
  • Grantor Retained Annuity Trust  What is a GRAT?  A GRAT is an irrevocable trust  Grantor transfers appreciating property to the trust  Grantor receives an annuity amount for a short term of years (usually 2-5 years)  Grantor continues to pay income taxes on any income or gains earned on the property, and annuity is disregarded  When the trust term expires, the remainder interest passes to the Grantor’s heirs, outright or in further trust  A taxable gift is computed when the property is transferred to the trust, based only upon the value of the remainder interest  If properly structured, GRAT performance may be enhanced with valuation discount planning
  • Grantor Retained Annuity Trust  The annuity amount may be structured to Advantages result in no taxable gift to the heirs  Future appreciation during the trust term in excess of an IRS interest rate (2.4% in May 2009) is transferred to heirs free of any gift tax  Grantor must outlive GRAT term  Income tax paid on the trust property is essentially a tax free gift to heirs  If IRS challenges the asset valuation, the annuity self-adjusts, resulting in no unexpected taxable gift  GRAT is sanctioned under the Internal Revenue Code
  • Example #1 Situation:  Solution: Parent wants to  Parent creates a $1,000,000 GRAT “freeze” the value of his with a three-year term taxable estate to the  Parent receives an annual annuity current payment for three years of $349,455 value, because he  Parent has made no taxable gift expects certain  If the assets appreciate at 8% per assets to appreciate year for the three year term, the child rapidly will inherit a tax-free gift of $125,242
  • Example #2 Situation:  Parent transfers $5,000,000 business to a 10 year GRAT Parent owns  Parent retains an annuity of $260,000, satisfied a business from company distributions for 10 years that he wants to move  Taxable gift of $962,650 (assuming valuation down to his discount of 35%) is sheltered by his lifetime children tax-free gift allowance of $1million without paying gift  At the end of 10 years, Parent is still alive and tax. He the business is transferred outright to children would like a with no gift tax retirement  At that time, at 10% growth & income, it is cash flow from the worth $8.8 million business.  Children can run and/or control the company during the GRAT term, if desired
  • The Fine Details of Strategy Get the Most  We can help with all the details to ensure Out of Your your GRAT is protected and performs: GRAT  Trust agreement is flexible, to deal with uncertain asset performance, a premature death, and potential transfers  Analysis of optimal GRAT term & annuity amount  Rollover and asset substitution options  Marital deduction planning  Accurate gift and income tax reporting  GST exemption allocations are frequent, costly errors  Accurate and timely annuity payments  Proper computations of asset ownership between Grantor and Trust
  • Inter-Family Loans Transfer future appreciation on assets, without losing access to current value of the underlying asset transferred, and without paying gift tax.
  • Inter-Family Loan (Alt. #1) Transfer Appreciation. Retain Principal. Reduce Gift & Estate Tax. Property Senior Junior Family Family Installment Member Member Note
  • Inter-Family Loan (Alt. #2) Transfer Appreciation. Retain Principal. Reduce Gift & Estate Tax. Appreciated Property Senior Family Installment Grantor Member Note Trust Balance of Trust Assets Planning Point: This Structure Avoids the Recognition of any Junior Taxable Gain on the Transaction Family Members
  • Inter-Family Loan (or Sale)  What is an Inter-Family Loan?  A parent loans cash, or sells assets to child, or to a trust for the benefit of child  Parent receives an installment note (alternatively, a demand note) for a term of years (usually a term less than parent’s life expectancy)  During the note term, any appreciation above the interest rate on the note is transferred free of gift tax  If the note amount equals the fair market value of the assets loaned (or sold) no taxable gift results  If properly structured, loan performance may be enhanced with valuation discount planning
  • Inter-Family Loans Advantages  Get assets to children currently without gift tax  Future appreciation during the note term in excess of an IRS interest rate (approx. 2% in 2009) is transferred to heirs free of any gift tax  If loan is between Grantor and his Grantor Trust  Entire transaction is disregarded for tax purposes  Income tax paid on the trust property is essentially a tax free gift to heirs  The transaction can be structured as a generation-skipping planning vehicle
  • Example #1 Balloon Note Parent  Solution: wants to “freeze” the  Parent sells $1,000,000 asset to child value of his (or a trust for the benefit of child) taxable estate to the  Parent takes back a 9-year balloon current note for $1,000,000 with a 2% interest value, and wants to rate help kids fund an  Parent has made no taxable gift important  If the assets appreciate at 8% per purchase, perhaps and year for the 9 year term, the child will business inherit a tax-free gift of $749,000 (before any income tax effect).
  • Example #2 Self-canceling Note Parent  Solution: needs to do  Parent is 80 years old. She sells estate $1,000,000 asset to a “grantor” trust for planning to the benefit of child. minimize  Parent takes back an 8 year note with a estate tax. Parent also 2.4% interest rate wants to  Note is self-canceling, if Parent dies give her within 8 years children a  Parent receives $185,400 a year for cash three years, then dies and note is generating extinguished asset.  $443,800 is transferred to heirs at Parent’s death without gift or estate tax
  • The Fine Details of Strategy  We can help with all the details to ensure your Get the Most transaction is protected and performs: out of Your Loan  Loan documentation must be flexible and Arrangement complete  Prepayment terms, adequate interest, renegotiations, transferability, self canceling features, downside valuation protection  Timely payments  Capture upside appreciation  Gift and income tax reporting must be aligned  Creative capitalization options for a trust purchaser
  • Qualified Personal Residence Trust Transfer your second home to your children in the future at a significantly reduced current gift tax cost, and retain the right to use the home indefinitely
  • Qualified Personal Residence Trust Transfer Vacation Home. Right to Use. Reduce Gift & Estate Tax. Vacation Home Senior Family Personal Member Trust Use for term of years Remaining Assets Junior Family Member
  • What is a Qualified Personal Residence Trust?  Grantor transfers home to a Trust  Grantor retains the right to use the home for a fixed period of years  At the end of the trust term, the house passes:  To a continuing trust for the benefit of children, or for the benefit of spouse and children, or to children outright  A taxable gift occurs when home is transferred to the trust  The taxable gift is a reduced amount, equal only to the value of the trust remainder (after the fixed term)  If Grantor wants to continue to use the home after the fixed term:  Grantor can rent the house back from children, or  Grantor can access the home through his surviving spouse’s income interest in a continuing trust, if any
  • Qualified Personal Residence Trust  Reduced upfront gift tax cost and the home is Advantages removed from your estate  Grantor must outlive QPRT term  Any future appreciation on the home is a tax-free gift to heirs  Grantor must outlive QPRT term  Continued use of home  Grantor may have to rent, after QPRT term ends  If home is sold and not replaced, QPRT converts to a GRAT  Nothing changes for income tax purposes, during the term  The QPRT can sell the home and you can still use your income tax exemption  You still deduct all the expenses during the QPRT term
  • Example  Grantor, age 60 transfers $1,000,000 family “heirloom” vacation home to a trust  Grantor continues to use the home for a period of 15 years  At the end of 15 years, the home is transferred to a continuing trust for the benefit of spouse and children  Grantor can continue to use the home rent-free while is spouse is living, and thereafter must pay FMV rent  Grantor’s taxable gift in year one is only $495,150  The home transferred to children free of gift tax in year 15 is worth $2,078,000 at 5% appreciation
  • Example: Qualified Personal Residence Trust with Continuing Trust Step 1 Vacation Home Senior Family Personal Trust Member Use for Term of Step 2 Years Vacation Home Remaining Step 4 Assets Step 3 Junior Spouse Family Personal Trust Member Use for Life
  • The Fine Details of Strategy Get the Most  We can help with all the details to ensure Out of Your your QPRT is protected and performs QPRT  Proper gift tax return reporting  Gift-splitting elections and GST exemption allocations are frequent, costly errors  Flexible document to address potential “real- life” situations in terms of what eventually will happen to the home  Proper planning for real estate tax impact  Advanced structuring options, including fractional share transfers, home exchanges, and reverse QPRT arrangements, and continuing spousal trusts
  • Charitable Remainder Trust Reduce income and estate tax on an appreciated asset. Retain family access to cash flow from the asset. Benefit charity in the future.
  • Charitable Remainder Trust Sell Appreciated Asset. Reduce Income & Estate Tax. Benefit Family & Charity. Appreciated Property Senior Family Member Annuity or s Trust Unitrust Interest for Life or Term of Years Remaining Assets Charitable Organization
  • What is a Charitable Remainder Trust?  Grantor transfers an appreciated asset to a trust  Grantor retains an income interest for life(lives) or a term of years (20 year max), or shorter of  Income interest is based upon a fixed percentage, trust income, or both  The fixed percentage is either an annuity (% of initial FMV) interest, or a unitrust (% of annual FMV) interest  At the end of the income interest the trust assets are distributed to an outside charity, or a family foundation
  • What is a Charitable Remainder Trust?  Different Types of CRTs:  Unitrust (CRUT): Fixed percentage of annual FMV  Annuity Trust (CRAT): Fixed percentage of initial FMV  Net Income CRUT (NICRUT): lesser of trust income or fixed percentage  Net Income with Make-up CRUT (NIMCRUT): lesser of net income or fixed percentage, with a make-up distribution in years when net income exceeds % of FMV  FLIP CRUT: Lesser of income or % of FMV until a specified event, then flips to a standard CRUT  Income interest must be 5%-50% of trust value per year  Actuarial value of charitable remainder must be at least 10%
  • Charitable Remainder Trust  An appreciated asset may be sold inside a CRT Advantages without current income tax  Good business succession strategy when coupled with a corporate redemption  Good diversification strategy for concentrated stock position  Income and gift (and/or estate) tax charitable deduction for the future value of charity’s interest, if properly structured  Retirement income tool, similar to an IRA  Grantor can only access income interest  CRT is a tax-deferred vehicle, similar to an IRA  Distributions to Grantor are taxable
  • Example #1 Sale of Appreciated Asset  Solution: Situation:  65 year-old Grantor creates a CRT and Grantor transfers $1,000,000 of appreciated assets needs to sell some  CRT sells the assets and realizes a undiversified $750,000 gain, but recognizes no gain for holdings to tax purposes protect her retirement.  Grantor retains the right to 7% of the annual The income fair market value of the trust assets, totaling tax on the gain would $1,290,000 (before taxes) for life (at an 8% be significant. rate) Grantor also  Charitable deduction in year one is $357,050 needs estate tax planning. and charity receives $1,180,000 in year 18, at Grantor’s death  Grantor’s estate receives an estate tax deduction for CRT assets included in estate
  • Example #2 Succession Planning Situation:  Solution: Grantor  65 year-old Grantor creates a CRT and wants to sell transfers $1,000,000 of XYZ stock appreciated business to  CRT stock is later redeemed by XYZ children. He  Grantor retains the right to a % of the doesn’t want to pay a annual fair market value of the trust significant assets for life income tax.  Children can operate the business, and He wants retirement now own 100% of it. cash flow.  Business can purchase life insurance on Parent to replace redemption proceeds, if desired
  • Charitable Remainder Trust #2 Charitable Bail-Out of Business Cash to XYZ Stock Redeem Stock in Senior XYZ Family XYZ Member Annuity or CRT s Unitrust XYZ Stock Interest for Life or Term of Years Remaining Assets Charitable Organization
  • The Fine Details of Strategy  Detailed analysis of income interest options: Get the Most  CRUT, CRAT, NIMCRUT, NICRUT, FLIPCRUT – Our of Your the options are dizzying CRT  “Spigot” planning with an LLC investment to enhance strategy performance through more income tax deferral  Business succession planning with CRT and a subsequent corporate redemption  “Unwinding” options and analysis  Flexible document so that:  a private foundation is a remainder charity option  a charity can be switched  an income interest can be revoked  a hard-to-value or special asset is suitable
  • Charitable Lead Trust Transfer an income interest to charity for a term of years . When charity’s term ends, trust assets are distributed to family. Reduce or avoid significant income and estate tax.
  • Charitable Lead Trust Reduce Significant Income & Estate Tax. Benefit Family & Charity. Income Interest for Term of Years Appreciated Senior Property Charitable Family Organization Member s Trust Remaining Assets Junior Family Member s
  • What is a Charitable Lead Trust?  Grantor (or Grantor’s estate) transfers assets to a trust for the benefit of charity and his family  Charity receives a specified amount annually for a term of years  The amount can take the form of an annuity (fixed % of initial FMV), or a unitrust (fixed % of annual FMV)  When the term ends, assets are transferred to heirs, or back to Grantor  May be structured to be suitable for use with a private foundation  May be structured to be suitable for a contribution of a closely-held business
  • Charitable Lead Trust Advantages  A CLT can produce significant estate & gift tax savings if heirs receive the trust remainder  Taxable gift or estate is reduced by the value of charities income interest  CLT postpones assets to heirs, which may be desirable if heirs are young  Lifetime CLT may be structured as a “grantor trust”, in which case Grantor receives an income & gift tax deduction (but also pays tax on the CLT income)  Testamentary CLT can be based on a formula designed to effectively eliminate estate tax  If properly structured, can be a tremendous way to use generation-skipping tax exemption
  • Example #1 No estate tax plan Grandfather  Grandfather dies and his estate transfers wants to use $4 million to a ten year, 7% CLUT his generation-  $2 million of his Generation-skipping tax skipping exemption is used exemption of $2 million at  $2 million charitable deduction is created his death and also  The CLT assets grow at 8% per year wants to fund his  His foundation receives a 7% unitrust family payment per year for ten years, totaling foundation $2.9 million to avoid any estate tax  In year eleven, his grandchildren inherit exposure $4.4 million without further estate tax
  • Example #1 Testamentary Charitable Lead Unitrust for Generation-Skipping Unitrust Interest for Term of Appreciated Years Senior Property Family See Note 1 Charitable Member’ Organization s CLUT Estate Remaining Assets Grand Note 1: A formula may be used to children peg the GST exemption remaining
  • Example #2 Testamentary Charitable Lead Annuity Trust For a Family Business Situation: Solution  Parent revises his estate planning documents to set-up a Parent has Testamentary Charitable Lead Annuity Trust, and gives his significant children the option to buy the business from his Estate in estate tax exchange for a Note exposure.  When Parent dies, children may own and operate the business He likes the immediately (once probate court approves of it) idea of forming a  The children make interest payments on the Note (with cash from family the business operations) foundation ,  This cash is used to fund the Annuity to the family Foundation but wants  When the CLAT terminates, the Note may be effectively his kids to extinguished because the children are on both sides of the Note have the family  Estate tax may be effectively eliminated, and some future business. appreciation during the TCLAT term may be an additional tax-free gift
  • Example #2 Testamentary Charitable Lead Annuity Trust for a Family Business Step 3: CLAT satisfies income Interest with Note payments Step 2: fund CLAT with Note Income Senior Installment Interest Family Note Member’ Charitable s Organization CLAT Estate Step 1: probate Business court approval Remaining Installment and sell Assets Note business to Junior children Step 4: When term Family Member ends, Note is effectively extinguished, because s children inherit the CLAT remainder The Result: estate tax elimination, and children immediately own the business
  • The Fine Details of Strategy  We can help you structure your CLT to Get the Most ensure that it is protected and performs Out of Your Charitable  Proper structure to accommodate the Lead Trust funding of a family business or investment company  Proper structure to accommodate the use of family foundations  Creative financing structures to get family access to CLT assets during the term  Flexible funding options, including funding formulas and powers of appointment  Zero estate tax options and projections
  • Family Limited Liability Company Reduce estate tax, retain control, simplify asset management across multiple family members, protect assets from creditors.
  • Family Limited Liability Co. Investment Assets Contributed Senior Family Member Voting & s LLC Nonvoting Interests Received Nonvoting Interests Gifted or Sold Over Time Junior Typical Structure on Family Day One, is 98% Member nonvoting, 2% voting s
  • What is a Family Limited Liability Co.?  Family members contribute investment assets to an LLC  Family members take back a membership interest in the LLC, based upon a their share of the total value of assets contributed  Membership interests can be voting and nonvoting  Typical structure is 98% nonvoting, 2% voting to concentrate control among senior family members  LLC is operated by its Manager, a senior family member  Family members must abide by LLC operating documents, which lays-out access to distributions, transfers of ownership limitations, and liquidation proceeds  Distributions of income or principal are generally to be made on a prorata basis
  • Family Limited Liability Company Advantages  Asset Management Benefits to Pooling Resources:  Access to alternative investments (especially for trusts or individuals who don’t meet the accredited investor definition)  Opportunity for better fee arrangements  Centralize family asset management with the most capable family members  Some investments, like private equity aren’t transferable, so they can be “wrapped” in a family LLC beforehand  Creditor Protection Benefits  Operating agreement restricts outsider or ex- spousal access to underlying assets
  • Family Limited Liability Co. Advantages,  Family Acrimony continued  Arbitration, versus litigation mandates  Control Benefits  Nonvoting junior family members have little control over LLC operations, and discretionary access to LLC assets  Simplify gift administration of real estate or other assets that aren’t easily divisible  Avoid out of state probate on real estate  Valuation discounts on gifts or bequests may be possible if properly structured  IRS could challenge discount amount
  • Example  Parents contributes real estate LLCs and Parents portfolio of securities to a family LLC need estate tax planning,  Parents receive voting and nonvoting interests and is willing in the family LLC to transfer  Over time, parents gift family LLC nonvoting appreciating interests to children real estate  Parents manage the family LLC properties and  Valuation expert determines that a 35% securities to valuation discount is applicable for lack of children over control and marketability time, but  $1,000,000 of ownership may be taxable as aren’t ready only a $650,000 gift . to give up  This gift can be offset by the $13,000 per person control . annual exclusion over a period of several years
  • Fine Details of Strategy Get the Most  Does Your Family LLC have a Out of Your business purpose? Family LLC  We can help you structure your Family LLC to that it is protected and performs  Careful monitoring of case law & legislation  Valuation discount historical data  Tracking of “bad fact” scenarios  Careful administration of LLC  Documentation of gifts, business meetings, capital accounts, prorata distributions  Careful drafting of LLC to optimize control aspects and valuation discount potential
  • Life Insurance Planning Avoid estate taxation of life insurance proceeds. Replace wealth going to charity. Use proceeds to fund estate tax, business buy-outs, or spousal support.
  • Life Insurance Trust – During Life Avoid Estate Tax on Proceeds. Benefit Spouse & Family. Provide Liquidity. Insured Cash Gift for Premiums Insurance Policy Insurance Premiums Trust
  • Life Insurance Trust – After Death Avoid Estate Tax on Proceeds. Benefit Spouse & Family. Provide Liquidity. Insurance Proceeds Insurance Policy Trust Income Principal Childre Spouse n
  • What is a Life Insurance Trust?  Grantor transfers cash to a trust  Trust is authorized to purchase insurance on the life of the Grantor, within the terms of the trust agreement  Trust purchases life insurance on Grantor’s life  Grantor funds the trust every year with sufficient cash to pay the required insurance premiums  At Grantor’s death, trust collects the proceeds, and may use the proceeds to benefit surviving spouse and heirs, make loans to grantor’s estate, or buy-out a business partner
  • Life Insurance Trust  If properly structured, life insurance proceeds Advantages are not included in Grantor’s estate  Plan to avoid the ‘three year rule”  Leverage of insurance vehicle can pass tremendous wealth in the event of a premature death  Surviving family members can access trust income and principal  Insurance premiums can be covered with annual exclusions to avoid gift tax  Liquidity source to pay debts, death taxes, and redemptions  Creditor protection for trust assets
  • Example Situation: Solution  Grantor gets pricing on a $1,000,000 insurance Parent wants to buy policy insurance to  Grantor funds an insurance trust with sufficient cash protect his spouse and to purchase the policy provide  Trust applies to buy insurance on Grantor liquidity upon his death to  Trust pays the premiums directly to the insurance redeem out a company business partner. He  Grantor dies, and $1,000,000 proceeds are already has a collected by the trust, saving $450,000 in estate tax taxable estate, and  Trust uses cash to buy-out business partner wants to avoid further  Trust supports spouse with income from the exposure. business
  • Fine Details of Insurance Planning  We can help you plan to ensure your insurance Get the Most trust is protected and performs Out of Your Insurance  Creative structuring to avoid three-year rule for existing policies Trust  Creative financing structures for large premiums  Insurance leverage using qualified plan assets  Document drafting that ensures no estate tax inclusion  Trust administration to avoid incidents of ownership in the policy (causing estate inclusion)  Advanced planning to couple with charitable vehicles, family LLCs, buy-sells, and dynasty trusts
  • Concentrations in a Single Stock Position Diversify and avoid immediate income taxation
  • Stock Diversification Strategies  Borrow Against Stock Position  Up to 50% of the value, typically  Invest loan proceeds in a diversified portfolio  Still retain upside (and downside) on stock position  Put Options  Downside protection in the event of a decline  Purchase put with cash premiums  If stock declines, you may:  Sell the stock at a put option price which is higher than current market price, or  Sell the option at a gain
  • Stock Diversification Strategies  Variable Prepaid Forward  Effective collar around the stock, with full downside protection and certain upside participation  Receive substantial upfront cash advance related to a future stock sale agreement  Stock is pledged as collateral  Cash may be invested in a diversified portfolio  Transaction stays open 3-5 years, and capital gains tax may be deferred during that time frame
  • Stock Diversification Strategies  Zero-Cost Collar  Investor sells a call option, and purchases a put option, so net cash outflow  Investor receives some downside protection, and some upside participation  At maturity  If stock is below the call option exercise price you pay cash to brokerage firm (or deliver stock) for the difference  If price is below put option exercise price, brokerage firm will make a cash payment for the difference
  • Stock Diversification Strategies  Exchange Fund  Investor contributes concentrated stock position to an investment partnership  Other investors contribute stock positions, and the result is a diversified portfolio  Limited partnership may invest in other asset classes, like real estate to enhance diversification  After 7 years, the limited partnership terminates, and investors receive their share of the diversified portfolio of at least 10 stocks with incurring capital gains tax
  • Stock Diversification Strategies  Transfer stock to a charitable trust or public charity  Defer (or avoid) income taxation on stock proceeds over your life  Receive income tax deduction for value expected to go to charity  Avoid estate tax on stock  Receive an income stream for life, to support your retirement:  Charitable Remainder Trust,  Pooled Income Fund, or  Charitable Gift Annuity.
  • Disclosures  This presentation is for informational purposes only and is not intended to, and does not constitute tax advice.  Any U.S. federal tax advice contained in this document is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any transaction or matter that is contained in this document.  AVANT is a brand that refers to AVANT Financial, LLC and AVANT Advisors, PLLC. AVANT Financial, LLC is not a law firm or investment advisor and does not provide legal, tax or investment advice. AVANT Financial, LLC is an affiliate of AVANT Advisors, PLLC, a Michigan law firm.  Please consult your personal legal and tax professionals before proceeding with any financial, tax or estate planning strategy.